AlaFile E-Notice

01-CV-2012-000066.00 To: GEAR GAYLE HAYWOOD ghgear@bellsouth.net

NOTICE OF ELECTRONIC FILING

IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA GREGORY EVERETT VS CITY OF BIRMINGHAM, BIRMINGHAM POLICE DEPARTMENT 01-CV-2012-000066.00 The following 12 was FILED on 6/8/2012 5:03:40 PM

Notice Date:

6/8/2012 5:03:40 PM

ANNE-MARIE ADAMS CIRCUIT COURT CLERK JEFFERSON COUNTY, ALABAMA JEFFERSON COUNTY, ALABAMA BIRMINGHAM, AL 35203 205-325-5355 anne-marie.adams@alacourt.gov

ELECTRONICALLY FILED 6/8/2012 5:03 PM CV-2012-000066.00 CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA ANNE-MARIE ADAMS, CLERK

IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA GREGORY EVERETT, Appellant, vs. PERSONNEL BOARD OF JEFFERSON COUNTY, a Governmental body and, THE CITY OF BIRMINGHAM POLICE DEPARTMENT, Appellees. } } } } } } } } } } } }

CIVIL ACTION NO.: CV -2012-00066

CITY OF BIRMINGHAMS MEMORANDUM BRIEF

INTRODUCTION This matter comes to the three-judge court for review of the January 10, 2012 action of the Jefferson County Personnel Board ("Board") which adopted the Hearing Officers Report dated December 29, 2011, upholding the termination of Gregory Everett, former Police Officer for the Birmingham Police Department. The Appellant is Gregory Everett (hereafter "Everett"). The City of Birmingham Police Department (hereafter City) and Jefferson County Personnel Board (hereafter Board) are the Appellees. Everett was a Police Officer employed by the City of Birmingham Police Department. Police Officer is a classified position in the civil service system governed by the Personnel Board. A transcript has been prepared and filed with the

Court by the Personnel Board. Everett was terminated by from the Birmingham Police Department on April 8, 2011 (Ex. I) On April 8, 2011, Everett appealed his termination in accordance with the provisions of Personnel Board Rule 12.4. Hearing was held on December 8, 2011 before Hearing Officer Tamula R. Yelling, Esq., and Tamula R. Yelling, Esq. rendered a decision on December 29, 2011, upholding Everetts termination. On January 10, 2012, the three members of the Personnel Board adopted the Report and Recommendation of the Hearing Officer (R2). On January 18, 2012, Everett filed his Notice of Appeal to the Jefferson County Circuit Court.

STANDARD OF REVIEW This appeal is provided by Act No. 248 of the 1945 Acts of Alabama, as amended ("Act"). Section 22 of the Act specifically deals with disciplinary actions, appeals of the same to the Personnel Board of Jefferson County ("Personnel Board") and appeals thereafter to the Circuit Court. Upon an appeal to the Circuit Court, a three-judge panel ("panel") is appointed to review the record from the appeal to the Personnel Board. The panel determines whether the Personnel Boards decision is supported by "substantial and legal evidence." Alston v. Personnel Board of Mobile County, 523 So.2d 456 (Ala.Civ.App. 1988). Substantial evidence is "relevant evidence which forms a rational basis for the conclusions approved and which a reasonable mind might accept as adequate such as to support a conclusion." Youth Crisis Center v. Moulds, 567 So.2d 319, 320 (Ala.Civ.App.

1980). Matters of weight and credibility of evidence are within the province of the Personnel Board, as it is the fact-finder. Rouse v. City of Birmingham, 535 So.2d 167, 168

(Ala.Civ.App. 1988); Ex Parte Personnel Board of Jefferson County, 440 So.2d 1106 (Ala.Civ.App. 1983). The Court's review consists of a consideration of the proper

application of the law and whether the Personnel Board's decision was supported by legal evidence. Ex Parte Smith, 394 So.2d 45 (Ala.Civ.App. 1981).

SUMMARY OF ISSUES AND BRIEF ARGUMENT The Record on Appeal supports the Report of the Hearing Officer the decision of the Personnel Board to uphold the termination of Gregory Everett. The videotape of the incident contradicts the testimony statement, and police report prepared by Gregory Everett. Michael Weiss, the manager of Budget Rent-a-Car was not an unbiased, impartial witness as his interest was the return of the rental vehicle from the Repair Shop belonging to Curtis Lowe. Both Michael Weiss and Curtis Lowe called the Birmingham Police Department on August 17, 2010. Officer Willie Hall responded to Mr. Lowes call and Gregory Everett and Benjamin Roberts responded to Mr. Weisss call. Officer Everett arrested Curtis Lowe for Disorderly Conduct, claiming that Curtis Lowe had pushed him. Officer Everett completed a police report stating that Mr. Lowe interfered with the investigation in that he became loud and boisterous which caused a large crowd of neighborhood residents to gather. Officer Everett went on to state that Mr. Lowe took an aggressive stance and refused Officer Everetts verbal commands to comply. According to

the report at the time of the arrest, Mr. Lowe stepped toward Officer Everett with clenched fists but stopped when Office Everett presented his mace. A videotape recorded by Darius Echols, an employee of Mr. Lowe (who has since found other employment) showed that at the time Everett presented his mace and arrested Mr. Lowe, Lowe was not acting aggressively toward Officer Everett. It further showed Officer Everett picking up Mr. Lowes cell phone and throwing it into a wall. It is significant to note that Curtis Lowe was acquitted of Disorderly Conduct at trial in Birmingham Municipal Court. Among the charges faced by Officer Everett at his Determination Hearing Officer Everett was charged with numerous violations including conduct unbecoming a police officer and filing a false report. Birmingham Police Chief A. C. Roper testified that there are some circumstances that allow for termination of an employee without going through progressive discipline and that among those circumstances the filing of a false report would be an extremely serious offense because our integrity is the basis of law enforcement. Chief Roper testified that the termination of Officer Everett was appropriate based on the facts and circumstances of the case. The Hearing Officer listened to the testimony of Darius Echols, Lt. Willie Hall, Cedric Lowe, Lt. NaShonda Goree, Chief A. C. Roper and Gregory Everett. The Hearing Officer also listened to the deposition testimony of Michael Weiss. The Hearing Officer also reviewed numerous trial exhibits and watched the video recorded by Darius Echols. The Hearing Officer weighed all of this evidence and issued a Findings of Fact and Law and

Recommended Decision upholding the termination of Gregory Everett.

CONCLUSION The City of Birmingham contends that the Personnel Board of Jefferson County was correct in upholding the decision of Hearing Officer Tamula R. Yelling, Esq. who upheld the Citys decision to terminate Officer Gregory Everett. The decision of both the Hearing Officer and the Personnel Board of Jefferson County was based on substantial and legal evidence as required under the rules of the Jefferson County Personnel Board and Enabling Act. The City of Birmingham hereby requests that the Three Judge Panel uphold the decision of the Personnel Board of Jefferson County affirming the Citys decision to terminate former Officer Gregory Everett.

Respectfully submitted,

s/Michael M. Fliegel, Assistant City Attorney Michael M. Fliegel, II (FLI-001) Attorney for Appellees City of Birmingham Police Department

City of Birmingham Department of Law 600 City Hall Building 710 North 20th Street Birmingham, AL 35203 (205) 254-2369 (Office) (205) 254-2502 (Facsimile)

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing City of Birminghams Memorandum Brief was served upon all attorneys of record for all parties via electronic filing on this 8th day of June, 2012.

Gayle Gear, Esq. 2229 Morris Avenue Suite B Birmingham, Alabama 35203 (205) 254-3995 Laura C. Nettles, Esq. Lloyd, Gray, Whitehead & Monroe, P.C. 2501 20th Place, South - Suite 300 Birmingham, Alabama 35223 (205) 967-8822 Honorable Judge Joseph Boohaker, Presiding Judge Jefferson County Courthouse 716 North Richard Arrington Jr. Boulevard Room 360 Birmingham, Alabama 35203 (205) 325-5753 Honorable Judge Tom King, Jr. Jefferson County Courthouse 716 North Richard Arrington Jr. Boulevard Room 340 Birmingham, Alabama 35203 (205) 325-5025 Honorable Judge Robert S. Vance, Jr. Jefferson County Courthouse 716 North Richard Arrington Jr. Boulevard Room 330 Birmingham, Alabama 35203 (205) 325-5035 s/Michael M. Fliegel OF COUNSEL